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03/17/87 La Salle National Bank, v. the City of Chicago Et Al.

March 17, 1987

MURPHY, A MINOR, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

THE CITY OF CHICAGO ET AL., DEFENDANT-APPELLEE AND CROSS-APPELLANT (CONSOLIDATED RAIL CORPORATION, DEFENDANT-APPELLANT AND CROSS-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

La SALLE NATIONAL BANK, Guardian of the Estate of Charles

506 N.E.2d 1326, 154 Ill. App. 3d 456, 107 Ill. Dec. 271 1987.IL.321

Appeal from the Circuit Court of Cook County; the Hon. Irving R. Norman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. BILANDIC and STAMOS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

La Salle National Bank, as guardian of the estate of Charles Murphy (referred to hereinafter as plaintiff), brought suit against Consolidated Rail Corporation (hereinafter Conrail), the board of education of the city of Chicago (hereinafter the board), and the city of Chicago (hereinafter the city) to recover for injuries suffered by Murphy. A jury returned a verdict in the amount of $1,130,000, which was then reduced to $926,000 due to plaintiff's comparative negligence. Both defendants appealed that decision, and plaintiff also appealed the reduction in his recovery.

During the pendency of that appeal, Conrail and plaintiff agreed to a settlement whereby each would dismiss its appeal against the other in consideration of a loan agreement between them. The appeal between plaintiff and the city continued, however, and this court ultimately affirmed the circuit court's judgment. (La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417.) Our supreme court later denied leave to appeal.

After the supreme court refused to review this court's decision, the city returned to the circuit court and sought to obtain a setoff against the judgment for the amounts paid plaintiff by Conrail. The circuit court eventually granted a setoff in the amount of $728,509. This second appeal followed.

The instant appeal concerns post-judgment proceedings relative to plaintiff's underlying suit for personal injury and, more specifically, the amount of that judgment and the manner of satisfaction of that judgment, after Disposition of the initial appeal. The original judgment was entered on October 21, 1982, following a jury trial, in the amount of $1,130,000. As noted, that amount was reduced to reflect plaintiff's 18% comparative negligence.

As to the original judgment and the parties' liabilities, two items are of note. First, we note that prior to trial, the board settled its liability by paying plaintiff $40,000. We also note that Conrail claims a contractual right of indemnity from the city, a matter which the parties inform us is currently the subject of a separate suit pending in the circuit court.

During the initial appeal, Conrail and plaintiff reached a settlement agreement, whereby Conrail would provide an interest-free loan to plaintiff, who would purchase an annuity of fixed terms. That annuity would furnish plaintiff a guaranteed sum of $2,350,000 and have a present cash value of $728,509. In consideration of that agreement, plaintiff and Conrail dismissed their respective appeals with prejudice as to each other. Plaintiff and Conrail thereafter appeared before Judge Murphy of the circuit court requesting approval of the settlement and a finding of good faith under the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.).

That hearing was held on August 24, 1982. The settlement itself was denominated a "loan agreement," and counsel for the city was present at the hearing. There was extensive Discussion between the parties and the court regarding the city's presence. The following statements were made on that subject and are relevant to the issues raised on appeal:

"[Counsel for plaintiff]: We're here to present a settlement and distribution order to Your Honor, since it is a minor, and the distribution must be approved.

It is my understanding that Conrail is also going to ask Your Honor to look at the settlement under the Contribution [Among Joint Tortfeasors] Act . . .

[Counsel for plaintiff]: With all due respect to [the city], and based on the case law, I don't think the city of Chicago has any standing whatsoever to object to a settlement reached between a co-defendant and a plaintiff, has any right to object to the terms or conditions of that settlement.

[Counsel for plaintiff]: . . . first of all, Your Honor has no power over the City of Chicago to affect any judgment or verdict reached as to the City of Chicago, because the mandate as to the City of Chicago has not issued.

The case is active in the Appellate Court. Counsel's suggestion that they may want to argue a setoff or reduction of the verdict is outside the power of this court.

[Counsel for plaintiff]: In this case this court doesn't have power over [the city. The city] is not here for the purposes of any order affecting a verdict or judgment as to them, no jurisdiction.

As far as they have a right to review this, they may have a right to a setoff, that is something that should be resolved, assuming the verdict is upheld on appeal, which I think it will be.

At that time, when it goes back to the Circuit Court for enforcement of the judgment, at that time and at that time alone, where the Circuit Court has been reinvested [ sic ] with jurisdiction for purposes of execution on the judgment, then the City of ...


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